2008 PLP 1396 (MLD)

DR. QAMMARUDDIN BOHRA, J.

Messrs Shaukat Hayat and Syed Khalid Shah Advocates are present for the applicant Malik Fayyaz, who is facing trial under section 9(c) C.N.S. Act, 1997 before the learned Special Judge-II (C.N.S.), Karachi, whose bail application has been rejected by the trial Court vide order, dated 22-4-2008 and thereafter, this present application is preferred. Mr. Ashfaq Hussain Rizvi is present as Special Prosecutor ANF. Mr. Zubair Hashmi Advocate is present for the Federation. Before hearing of the above bail application it strikes to my mind that whether a Single Bench of this Court can hear the order of rejection of Criminal Bail Application passed by the Special Court of Narcotics or the same is to be heard by the Division Bench. The learned counsel for the applicant contended that this point arose in the Criminal Bail Application No.660 of 2007, which was heard by a Division Bench of this Court consisting of the then Chief Justice Mr. Justice Sabihuddin Ahmed and Mr. Justice Faisal Arab and then elaborated order was passed and all the law was discussed and it was held by the Hon'ble Bench that the order of the Single Judge ousting his jurisdiction to hear the criminal bail application by the single Bench and to be heard by the Division Bench is not proper and it was further held that a single Judge can hear the bail application in exercise of the original jurisdiction of this Court under section 498, Cr.P.C. and in consequence of the above decision an administrative order dated 6th September, 2007 was issued by the Registrar that "Hon'ble Chief Justice has been pleased to order that all the bail applications filed under section 498, Cr.P.,C. read with section 48 of Control of Narcotic Substances Act, 1997 shall now be heard by a Single Bench of this Court, instead of Division Bench. This order and the circular hold the field. Subsequently, another order was passed, copy of which has been placed by the learned Special Prosecutor A.N.F. whereby a Single Judge of this Court Justice Mrs. Yasmin Abbasey held in a Criminal Bail Application No. 576 of 2007 that the criminal bail application arises from the order passed by the Special Court of Narcotics is to be heard by the Bench comprising of two Judges. Probably before my learned sister Justice Mrs. Yasmin Abbasey the order passed by the D.B. in Criminal Bail application No. 660 of 2007 had not been placed nor the circular. However, the Special Prosecutor General as well as D.A.G. conceded that in light of the order passed by the Division Bench in Criminal Bail Application No.660 of 2007 and the administrative order issued in this respect, the Single Bench can hear the criminal bail application, as such, this Court takes criminal bail application for hearing. The learned counsel for the applicant contended that first bail application was moved before the trial Court on merits and on the ground of sickness and the said application was dismissed vide order dated 18th August, 2007, which was not challenged by him. However, in another case arises out of F.I.R. No. 22 of 2007 in which the criminal bail application was moved for this accused before the trial Court, which was also rejected and against that order the applicant/accused preferred the Criminal Bail Application No.729 of 2007 before one of the Benches of this Court, which was granted on 8-4-2008 after the report of the Medical Board constituted by the Court. Then on same grounds the applicant/accused repeated his criminal bail application before the trial Court on merits as well as on the ground of sickness but unfortunately the said application was again rejected and then he preferred the present criminal bail application. According to learned counsel the present criminal bail application is on the two grounds, one on the medical ground and the other on the merit. Regarding the merit he contended that the name of the applicant/accused is not in the F.I.R. nor in the mashirnama nor anything was recovered from him and he was only implicated on the statement of co-accused namely Talib Hussain, who was convicted on his plea of guilt in this very case. The applicant/accused was challaned while showing absconder. However, subsequently he had been arrested and facing trial. The learned counsel for the applicant further contended that after rejection of the first bail application the trial Court has examined the Mashir A.S.-I. Naeem Khan who had not supported the case of the prosecution. Regarding another ground i.e. of sickness the learned counsel contended that copy of the report of Medical Board is on record, which shows that three valves of the applicant/accused are blocked. The learned Special Prosecutor opposed the bail application on the ground that at this stage the deeper appreciation of the evidence is not to be taken and the main mashir was not examined so far. However, he admitted that nothing was recovered from the present applicant/ accused and no question of recovery is because he sold the case property to the co-accused namely Talib Hussain who had already been convicted. Regarding the medical ground the learned Special Prosecutor contended that the applicant/accused can be referred to the government hospital where he can be operated free of cost. The learned Federal Counsel did not oppose the bail application on the medical ground. Admittedly, the property in question has not been recovered from the applicant/accused and the evidence available with the prosecution is the statement of the co-accused that he purchased the property in question from the applicant/accused and the said co-accused has pleaded guilty and has been convicted. The one of the mashirs has been examined who has not supported the prosecution as such, the applicant/accused case has become of further inquiry. Regarding medical ground the applicant/accused is already admitted by this Court in a Criminal Bail Application No.729 of 2007 and the said order has been challenged in the Hon'ble Supreme Court but till date no stay or any restraining order is produced. As far as merit of the case is concerned the case of applicant/accused is of further inquiry. Regarding the medical ground there is the report of Medical Board which shows the gravity of sickness and he is already admitted on bail in the connected case on the ground of medical by one of the Benches of this Court. As such he is admitted on bail subject to furnishing surety in the sum of Rs.300,000 (Rupees three lac only) with P. R. bonds in the like amount to the satisfaction of the trial Court. Announced in open Court. M.B.A./F-38/K Bail granted.